Mendonca v. INS ( 1999 )

USCA1 Opinion

       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1169



                     SHARON HUGHES MENDONCA,



                      Plaintiff, Appellant,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Patti B. Saris, U.S. District Judge]







                              Before



                     Torruella, Chief Judge,

               Selya and Boudin, Circuit Judges.











     Sharon Hughes Mendonca on brief pro se.

     David W. Ogden, Acting Assistant Attorney General, Joan E.

Smiley, Senior Litigation Counsel, and Anthony W. Norwood, Trial

Attorney, Office of Immigration Litigation, on brief for appellee.











December 30, 1999















            Per Curiam.  Petitioner Sharon Hughes Mendonca, on

  behalf of her husband Crisanto Mendonca (a citizen of Cape

  Verde), appeals from the denial of a petition under 28 U.S.C.

  § 2241 for habeas corpus relief.  Petitioner there sought to

  challenge a discretionary decision of the Board of Immigration

  Appeals (BIA) denying her husband's application for adjustment

  of status, see 8 U.S.C. § 1255; she also requested an order

  compelling his naturalization.  The district court dismissed

  for lack of subject-matter jurisdiction.  See Mendonca v. INS,

  52 F. Supp. 2d 155 (D. Mass. 1999).

            With respect to the naturalization issue, we affirm

  substantially for the reasons recited by the district court.

  See id. at 163-64.  With respect to the adjustment-of-status

  issue, we affirm on the merits.  Respondent is mistaken in

  asserting that § 309(c)(4)(E) of IIRIRA, Pub. L. No. 104-208,

  Div. C, 110 Stat. 3009-546, divests the district court of

  habeas jurisdiction.  See, e.g., Requena-Rodriguez v.

  Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999); Goncalves v.

  Reno, 144 F.3d 110, 120-21 (1st Cir. 1998) (construing §

  309(c)(4)(G)), cert. denied, 119 S. Ct. 1140 (1999).

            In turn, whether federal courts in such "transitional

  rules" cases possess residual jurisdiction under § 2241 to

  review discretionary determinations of the BIA is a question

  not subject to ready resolution.  See, e.g., id. at 125 n.17

  (noting, without addressing, argument from amici that "habeas

  jurisdiction also traditionally allowed review, under a

  'manifest abuse of discretion' standard, of the exercise of

  discretion to deny relief").  However, the question how far

  habeas jurisdiction extends is one of great practical

  importance, and there is no reason to address it in this case.

  Even assuming that habeas jurisdiction does extend in this

  matter to abuses of discretion--and this is very much an

  arguendo assumption--there is nothing in this case that

  remotely suggests such an abuse by the BIA.  Accordingly,

  whatever the scope of habeas corpus, there is no basis for

  setting aside the BIA's refusal to adjust status.

            Our affirmance on this ground does not offend Steel

  Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).

  We think that the question whether § 2241 encompasses such

  claims, rather than being jurisdictional in nature, instead

  goes to the merits.  "[T]he absence of a valid (as opposed to

  arguable) cause of action does not implicate subject-matter

  jurisdiction, i.e., the courts' statutory or constitutional

  power to adjudicate the case."  Id. at 89 (characterizing as

  non-jurisdictional the question whether a citizen-suit

  provision of the Emergency Planning and Community Right-to-Know

  Act of 1986 permits suits for past violations); see also, e.g.,

  Davoll v. Webb, 194 F.3d 1116, ____, 1999 WL 969263, at *5-*6

  (10th Cir. 1999); Cablevision of Boston, Inc. v. Public

  Improvement Comm'n, 184 F.3d 88, 100 & n.9 (1st Cir. 1999).

            Affirmed.